Central Administrative Tribunal - Delhi
Nsic (Ptc) Employees Union vs The National Small Industries ... on 1 June, 2011
Central Administrative Tribunal Principal Bench TA No.1005/2009 New Delhi this the 1st day of June, 2011. Honble Mr. M.L. Chauhan, Member (J) 1. NSIC (PTC) Employees Union Registered through its Secretary, NSIC Bhawan, Okhla Industrial Estate, New Delhi-110 020. 2. Mr. H.S. Bora, S/o C.S. Bora, General Secretary, NSIC (PTC) Employees Union, R/o Mayur VIhar, Pocket A-2, 138-H, Phase-III, Delhi-110091. 3. Mr. K.K. Sharma, S/o late Shri R.C. Sharma, President, NSIC (PTC) Employees Union, R/o 42, Anarkali Garden, Gali No.2, Jagatpuri, Delhi-110057. -Applicants (By Advocate Shri Maninder Acharya with Shri Yashish Chandra, Advocate) -Versus- 1. The National Small Industries Corporation Ltd., (A Govt. of India Enterprise), NSIC Bhawan, Okhla Industrial Estate, New Delhi-110 020. 2. Union of India, through Deptt. of Public Enterprises, Block No.14, CGO Complex, Lodhi Road, New Delhi. -Respondents (By Advocate Shri Shashank Prabhakar for Shri A.K. Thakur, Advocate) O R D E R Mr. M.L. Chauhan, Member (J):
The National Small Industries Corporation (NSIC) Employees union has filed the Writ Petition through its General Secretary along with two petitioners, thereby praying for the following reliefs:-
A) issue a writ, order or direction in the nature of certiorari quashing the Circulars dated 02.07.1998 and 20.01.1998 to the extent by which house rent allowance has been granted on the revised pay scale w.e.f. 01.08.1997 instead of 01.01.1996 i.e. the date from which their pay scales were revised on the recommendations of the 5th Pay Commission;
B) issue a writ, order or direction in the nature of mandamus directing the respondents to pay house rent allowance to the petitioners @30% of their basic pay as revised on the recommendations by High Power Pay Committee, the Honble Supreme Court Judgment dated 03.05.1990 and 5th Pay Commission w.e.f. 01.01.1996 to 01.08.1997 with interest @18% per annum;
2. This Writ Petition has been transferred to this Tribunal consequent upon conferment of jurisdiction upon this Tribunal to decide the service dispute of NSIC and registered as TA-1005/2009. As can be seen from the prayer clause, as reproduced above, the grievance of the applicants is regarding grant of house rent allowance (HRA) w.e.f. 1.1.1996 instead of 1.8.1997 on the revised pay scales as recommended by the High Powered Pay Commission and accepted by the Corporation. Respondents in the reply have stated that vide circular No.16/98 dated 20.1.1998 they have taken a decision that the revised rates of House Rent Allowances will be applicable w.e.f. 1.8.1997 and from 1.1.1997 to 31.8.1997 the HRA already paid to the employees on the old pay scales will remain paid. Respondents have stated that it was permissible for the respondents to accept the recommendations of the HPPC regarding revision of scale of pay, HRA and other allowances from different dates. Respondents have also stated that the NSIC circular dated 15.1.1998 does not stipulate for revision of HRA based on the revised pay scales and have mentioned that orders in connection with the revision of such allowances would be issued separately. It is further stated that rate of HRA in respect of CDA pattern employees of PSEs were revised in the light of the orders issued by the Ministry of Finance (Department of Expenditure) vide OM NO.2(30)/97-E.II(B) dated 3.10.97. Thus, according the respondents the cut off date for payment of HRA on revised pay scale w.e.f. 1.8.1997 is not arbitrary but the benefit of revised HRA has been extended from that date at par with the employees of PSEs and other Central Government employees.
3. I have heard the learned counsel for the parties and gone through the material placed on record.
4. Learned counsel of applicants has raised two-fold submissions that there is no rationale behind 1,8.1997 as cut off date for the purpose of payment of HRA in the revised pay scale and also that in terms of the OM dated 12.6.1990 (Annexure P-3), Ministry of Programme Implementation, Department of Public Enterprises has accepted the recommendations of the High Powered Pay Commission regarding payment of HRA in respect of the employees working at Delhi and Bombay @30% of basic pay. As such, once the pay has been revised subsequently on the acceptance of the recommendations of the High Powered Pay Commission w.e.f. 1.1.1996, the HRA should also have been granted to the applicants @30% w.e.f. 1.1.1996 from the date when the pay was revised.
5. I have given due consideration to the submissions made by the learned counsel of applicant. Though the submission made by the learned counsel of applicant is attractive but deserves outright rejection. It may be stated that the High Powered Pay Commissions recommendation was earlier implemented by the respondents vide OM dated 12.6.1990 (Annexure P-3). As can be seen from para-5 of the OM dated 12.6.1990 the revised pay scale was made effective w.e.f. 1.1.1986 retrospectively. Insofar as HRA is concerned, para 9.12 of the said OM made it clear that PSUs employees working at Delhi and Bombay shall be entitled to HRA @30% basic pay. Para 9.12 (ii) makes it clear that HRA would be paid by the PSEs to its employees for the period between 1.1.1986 to 31.11.1998 on the notional pay in the pre-revised scale of pay. This para further made it clear that w.e.f. 1.12.1986 HRA would be paid on the revised scale of pay subject to the ceiling mentioned therein. Thus, from what has been stated above, even prior to acceptance of the recommendations of the V CPC and in terms of the OM dated 12.6.1990 the revised pay scale was made effective retrospectively w.e.f. 1.1.1986 whereas for the purpose of HRA, revised pay scale was to be taken into consideration w.e.f 1.12.1988. In other words, although the revision of pay was given retrospective effect but for the purpose of HRA the same was given effect from a prospective date. Similarly, when the recommendations of the V CPC were accepted, the respondents issued different memoranda regarding grand of HRA. At this stage, it will be useful to quote some of the circulars issued by the respondents regarding grant of HRA and other allowances to its employees. At this stage, it will be useful to quote the relevant extract from circular No.16/1998 dated 20.1.1998, which thus reads:
The revised rates of House Rent Allowances will be applicable w.e.f. 1.8.1997 and from 1.1.1997 to 31.8.1997 the HRA already paid to the employees on the old pay scales will remain paid. Another circular issued by the NSIC dated 15.1.1998, having bearing with the issue involved is also to the following effect:
The Department of Public Enterprises (DPE), as per their office memorandum on 24th of October, 1997, have not issued instructions for revision of the HRA based on the revised pay scales and have mentioned that orders in connection with the revision of such allowances would be issued separately. The corporation in this view would continue HRA at the existing rate on their old basic pay, till further orders.
6. Thus, in view of the circulars, as issued by the respondents and as reproduced above, validity of which has not been challenged by the applicants in this TA, I am of the firm view that applicants are not entitled to the HRA on revised pay scale w.e.f. 1.1.1996 when the revision of the pay scale was given retrospective effect. The contention raised by the learned counsel of applicants that the cut off date fixed by the respondents as of 1.8.1997 is arbitrary, cannot be accepted. It is settled position that some date has to be fixed for the purpose of grant of pay scale, allowances and for the purpose of eligibility and revision of pay scales etc. and same can be provided even by an executive order. If the same has caused some hardship to the individual, that is not a ground to interfere in the matter. The view, which I have taken is inconformity with the law laid down by the Apex Court in Ramarao & Others v. All India Backward Class Bank Employees Welfare Association and others, (2004) SCC (L&S) 337 and State of A.P. v. A.P. Pensioners Association, (2006) 1 SLR 57.
7. The matter can also be looked into from another angle. The Apex Court in Director, C.P. Crops Research Institute v. M. Purushothaman, AIR 1994 SC 2543, has held that HRA cannot be claimed as a matter of right. It is the privilege extended by the Government in lieu of accommodation and would be covered by definition of compensatory allowance and is not a part of wages/pay. Be that as it may, according to me, there is a rationale behind fixing of the cut off date by the respondents. As already stated above, the recommendations of the High Powered Committee/Pay Commission appear to have been accepted by the Government in July-August, 1997. Government/PSEs have given retrospective operation to the recommendations w.e.f 1.1.1996 insofar revision of pay scale is concerned, but for the purpose of HRA recommendation appears to have been accepted prospectively when the Government has accepted the recommendations of the Committee/Pay Commission. Thus, it cannot be said that the cut off date of 1.8.1997 fixed by the Government/PSEs for grant of HRA is arbitrary. Before the recommendations of the Pay Commission/High Powered Committee were accepted by the competent authority the applicants were allowed HRA, which was admissible to them, in terms of the basic pay, which they were drawing. Thus, according to me, the applicant has got no legal right to claim HRA on revised pay scale from a retrospective date simply because the revision of pay scale has been given retrospective effect only for the purpose of pay scale, and not for the purpose of HRA.
8. It may also be relevant to mention that even in terms of the earlier OM dated 10.8.1990 (Annexure P-5) the applicants were granted the revised pay scale w.e.f. 1.1.1986 but the benefit of the HRA and revised pay scale was extended from 1.12.1988. Thus, grant of HRA on the basic pay has nothing to do with the retrospective operation of the revision of pay scale from the earlier date.
9. In the result, for the foregoing reasons, I am of the view that the present OA is devoid of merit, which is accordingly dismissed. No costs.
(M.L. Chauhan) Member (J) San.